April 25, 2013

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Lazy Quotes

by WSBA

Write better! Don’t use long block quotes in place of legal analysis.

Legal writing is meant to help a judge (or whoever is the legal writer’s intended reader) decide a difficult problem. In that regard, incorporating direct quotes from judicial opinions or statutes can be a highly effective means of legal writing advocacy.

But too often attorneys misuse quotations; they use large block quotes in place of a proper legal analysis. For example, an attorney might quote the following block text from International Shoe as her governing rule in a motion to dismiss for lack of personal jurisdiction:

Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

This block quote would certainly be skimmed and possibly not read at all if used in a legal brief, simply because it is not helpful. A better expression of the essential understanding from this quote — and a better use of the case authority — is this:

The rule from International Shoe and its progeny is this: personal jurisdiction requires “minimum contacts” and that its exercise uphold “‘traditional notions of fair play and substantial justice.’”

Not only is this sentence easier to understand, its brevity allows more page space for the brilliant legal reasoning you will write to ultimately win your case. A judge does not need counsel to reproduce the text from some other person’s writing. What a judge needs is a clear statement of the applicable rule and an original insight extracted from the abundance of potentially relevant legal principles that comprise our jurisprudence.

Counsel can learn from journalists. A reporter’s intended audience is the public, and a reporter’s job is to inform and educate the public. To do so, a reporter gathers raw, unprocessed material from various sources — documentary, witness accounts — then refines the essential elements of that data into an easily digested, useful form. Good journalists do not reproduce a lengthy interview statement and leave it to the public to decipher its meaning. Rather, journalists do the sifting for the public’s benefit and turn complicated scenarios into easy-to-understand concepts.

In the same way, attorneys consult legal authorities, gather facts on complicated issues, depose witnesses, and review evidence to present a client’s case. But an attorney hurts, rather than helps, her cause by merely slapping a glob of quoted text in place of an insightful distillation of information. Even worse, using block quotes can appear as evidence of an attorney’s failure to grasp a relevant legal concept; a lengthy quote can look like a crutch.

Before resorting to a block quote from a judicial opinion, deposition transcript, contract, will, or other writing in your next composition, consider the job description from On Writing Well: The Classic Guide to Writing Nonfiction that William Zinsser gave to journalists and other writers: “Your job is to distill the essence.”

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